Citation NR: 9705993
Decision Date: 02/25/97 Archive Date: 03/04/97
DOCKET NO. 95-10 507 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to service connection for bipolar disorder
due to Agent Orange exposure.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. Lemoine, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1966 to
August 1969 and from May 1970 to May 1974.
The Board of Veterans' Appeals (Board) received this case on
appeal from an August 1994 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO), which denied
the veteran's claims.
REMAND
On a VA Form 9, dated in March 1995, the veteran indicated
that he wished to have a hearing before a hearing officer at
the RO. The form is date stamped as received in April 1996;
however, in September 1995, the RO sent the veteran a letter
which acknowledged his request for a hearing and notified him
of the scheduled hearing date of October 11, 1995. Received
on the date of the veteran's scheduled hearing was a written
request from the veteran that his hearing be postponed for 90
days so that he could obtain additional evidence. There is a
notation in the record, also dated on October 11, 1995, to
diary the file for 90 days as the DAV was attempting to
obtain additional evidence.
A January 1996 statement to Senator Robb from the veteran is
of record. The vetereran related that he showed up for his
hearng on October 11,1995 and that his representative
suggested that he not have a hearing because there was
inconsistencey in the record. In his statement, the veteran
indicated that he was now sending additional documentation to
support his claim for PTSD. The Board notes that review of
the record does not indicate that either the veteran or his
representative ever withdrew the veteran's request for a
hearing. However, the veteran's requested hearing was not
subsequently rescheduled by the RO. Accordingly, in order to
ensure due process of law, the RO should now schedule the
veteran for his requested hearing before the RO.
Further review of the record reveals that the veteran is in
receipt of disability compensation from the Social Security
Administration. Accordingly, it is necessary that this case
be remanded so that the RO may contact the Social Security
Administration and request copies of any decision and medical
records used in awarding the veteran disability benefits.
Furthermore, the Board notes that review of the medical
record reveals private medical records from the Behavioral
and Neuropsychiatric Center which indicate treatment of the
veteran from August 1992 through July 1993. These indicate
the veteran was treated for both bipolar disorder and PTSD.
The record also contains VA outpatient treatment records from
July 1993 through November 1994, which indicate the veteran
had been diagnosed with and treated for both PTSD and bipolar
disorder. On VA examination on June 1994, the veteran was
diagnosed with PTSD.
The veteran has provided detailed information regarding his
claimed stressors in his statement received in June 1994,
accompanying his notice of disagreement received in August
1994, and also accompanying his substantive appeal received
in March 1995. The veteran also provided information
regarding the history of his unit, although it is unclear
from the record when this information was received by the RO.
The Board notes that the RO has made no attempt to verify the
veteran's claimed stressors by contacting the United States
Army and Joint Services Environmental Support Group (ESG).
The RO should summarize the veteran's statements regarding
his claimed stressors and forward that summary to the ESG for
attempted verification. The RO should also request from ESG
any additional information regarding the history of the
veteran's units during the veteran's period of service in
Vietnam.
In adjudicating a claim for service connection for PTSD, the
Board is required to evaluate the supporting evidence in
light of the places, types, and circumstances of service, as
evidenced by the veteran's military records, and all
pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b)
(West 1991 & Supp. 1996); 38 C.F.R. § 3.304(f) (1996); see
Hayes v. Brown, 5 Vet.App. 60, 66 (1993). Additionally,
service connection for PTSD requires medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that the claimed inservice stressor
actually occurred, and a link, established by the medical
evidence, between current symptomatology and the claimed
inservice stressor. See Zarycki v. Brown, 6 Vet.App. 91, 97
(1993).
In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated
on the analysis in Zarycki. In Zarycki, the Court held that
in addition to demonstrating the existence of a stressor, the
facts must also establish that the alleged stressful event
was sufficient to give rise to PTSD. Id. at 98-99. In West,
the Court held that the sufficiency of the stressor is a
medical determination, and therefore adjudicators may not
render a determination on this point in the absence of
independent medical evidence. Id. at 79. The Court also
held in West that a psychiatric examination for the purpose
of establishing the existence of PTSD was inadequate for
rating purposes because the examiners relied, in part, on
events whose existence the Board had rejected. Id. at 78.
Upon reviewing Zarycki and West, it appears that in
approaching a claim for service connection for PTSD, the
question of the existence of an event claimed as a
recognizable stressor must be resolved by adjudicatory
personnel. If the adjudicators conclude that the record
establishes the existence of such a stressor or stressors,
then and only then, the case should be referred for a medical
examination to determine the sufficiency of the stressor and
whether the remaining elements required to support the
diagnosis of PTSD have been met. In such a referral, the
adjudicators should specify to the examiner(s) precisely what
stressors have been accepted as established by the record,
and the medical examiners must be instructed that only those
events may be considered in determining whether stressors to
which the veteran was exposed during service were of
sufficient severity as to have resulted in current
psychiatric symptoms. In other words, if the adjudicators
determine that the existence of an alleged stressor or
stressors in service is not established by the record, a
medical examination to determine whether PTSD due to service
is present is pointless. Likewise, if the examiners render a
diagnosis of PTSD that is not clearly based upon stressors in
service whose existence the adjudicators have accepted, the
examination would be inadequate for rating purposes.
It is imperative that the RO ensure that all such possible
development has been completed before again returning this
file to the Board for appellate review.
In light of the foregoing and to ensure that VA has met its
duty to assist the appellant in developing facts pertinent to
his claims, this case is REMANDED to the RO for the following
development:
1. The RO should schedule the veteran
for his requested hearing before the RO.
2. The RO should contact the Social
Security Administration and request
copies of any decision and medical
records used in awarding the veteran
disability benefits by that agency.
3. The RO should once again contact the
veteran and request that he provide the
names and addresses of all medical care
providers who treated him for his claimed
psychiatric disorder(s). The RO should
request the veteran furnish signed
authorizations for release to the VA of
private medical records in connection
with each non-VA source identified. The
RO should attempt to obtain any such
private treatment records and any
additional VA medical records, not
already on file, which may exist and
incorporate them into the claims folder.
4. The veteran should also once again be
asked to specify, in as detailed a
fashion as possible, the circumstances
surrounding the claimed stressor
incident(s). He should specify, to the
extent possible, the location and date of
each event identified, the unit to which
he was assigned at the time, the names of
other individuals participating, if
known, in addition to any other
identifying information which may be
relevant. The veteran should be informed
that the information is necessary to
obtain supportive evidence and that
failure to respond may result in an
adverse determination. The veteran's
response should be associated with the
claims folder.
5. Regardless of the veteran’s response,
the RO must review the entire file,
including any additional information
submitted by the veteran, and prepare a
summary of all the claimed stressors.
All information provided by the veteran
must be summarized. This summary of
information and all associated documents
should be sent to the United States Army
and Joint Services Environmental Support
Group (ESG), 7798 Cissna Road,
Springfield, VA 22150. ESG should be
requested to provide any information
which might corroborate the veteran’s
alleged stressors, including information
available concerning the veteran's units
of assignment.
6. Following the above, the RO must make
a specific determination, based upon the
complete record, as to whether the
veteran did experience the alleged
stressors and determine whether the
evidence is sufficient to establish the
occurrence of the stressors.
7. If, and only if, the RO determines
that the record establishes existence of
a stressor or stressors then the RO
should specify those stressors for the
record. The RO should then schedule the
veteran for a VA psychiatric examination
in order to determine, after a review of
all pertinent evidence and evaluation of
the veteran, whether he currently meets
the diagnostic criteria for PTSD. In
determining whether or not the veteran
has PTSD due to an inservice stressor,
the examiner is hereby notified that only
the verified history detailed in the
reports provided by ESG and/or RO may be
relied upon. The claims folder, along
with any additional evidence requested
above, should be provided to the examiner
for review. The examination report
should reflect review of pertinent
material in the claims folder and include
the complete rationale for all opinions
expressed. All necessary special studies
or tests, to include psychological
testing and evaluation, such as the
Mississippi Scale for Combat-Related
post- traumatic stress disorders, should
be accomplished.
8. After the development requested above
has been completed, the RO should again
review the entire record. If any
determination remains unfavorable to the
veteran, the RO should furnish him and
his representative with a supplemental
statement of the case, in accordance with
38 U.S.C.A. § 7105 (West 1991 & Supp.
1996).
The veteran and his representative should be given the
opportunity to respond thereto. Thereafter, the case should
be returned to the Board for further appellate consideration,
if otherwise in order, following appropriate appellate
procedures.
The purpose of the REMAND is to further develop the record
and ensure due process of law. The Board does not intimate
any opinion, either factual or legal, as to the ultimate
disposition warranted in this case. No action is required of
the veteran until he receives further notice.
STEVEN L. COHN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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